MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            26 April 2000                  
	DOCKET NUMBER:    AR1999030720

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Curtis L. Greenway		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Cancellation of his discharge and reinstatement.

APPLICANT STATES:  That new evidence will shows that the allegations against him are unjust and unsubstantiated and he was denied due process, and that actions taken against him were in retribution for his legally justifiable actions.  Specifically, he alleges that he was not selected for promotion, he was not allowed to attend Annual Training (AT), he was denied attendance at a previously approved school course and he was relieved from duty and involuntarily separated from the Army National Guard.

In support of his request, he has provided a copy of his DD Form 214, Certificate of Release or Discharge.  He also contends that he has retained counsel who will forward additional materials to include a copy of the investigation in his case (as of this date, no additional materials have been received).

EVIDENCE OF RECORD:  The applicant's military records show:

He initially entered the Active Guard/Reserve (AGR) program with the Rhode Island National Guard (RIARNG) in the grade of sergeant in September 1984 as a supply sergeant.  With the exception of minor breaks in service, he remain in the AGR program until his honorable separation, for completion of required active service, on 31 August 1996.  At that time, he reverted to a drilling guardsman position and was subsequently promoted to sergeant first class on 20 November 1996.

In an 8 December 1996 letter to the DoD-IG, the applicant alleged that The Adjutant General (TAG) and the former chief of staff of the RIARNG reprised against him for protected disclosures to an Army Regulation (AR) 15-6 investigating officer, to the National Guard Bureau (NGB)-IG, and to a member of congress.

The applicant’s allegations were referred by the DoD-IG to the Army-IG for investigation.

The events leading to separation from his AGR tour which were the subject of investigation by the Army IG were as follows:

In December 1995 the applicant provided a statement to a report of survey initiated to account for equipment damaged by water while in storage.  His statement attributed the property damage, in the amount of $10,000, to senior officials in the RIARNG.  He contends that his statement to the investigating officer looking into the storage facility issue was a protected communication but the senior officials of RIARNG retaliated against him for it.  He subsequently made other protected communications after unfavorable actions were taken against him.

On 7 March 1996 the applicant was directed to appear at 1730 on 19 March 1996 as a witness at an Administrative Separation Board.  On 19 March 1996 he was sent another memorandum indicated that the command had sent a registered notification to him on 8 March 1996 and had made an unsuccessful verbal attempt to notify him on 19 March that he was required to appear.  The     8 March registered letter was returned by the Post Office as unclaimed.  He was, however, contacted at his unit by telephone on the morning of 19 March 1996 and reminded of his appearance before the board.  He advised the caller that he was not sure he could attend the board due to a problem obtaining a baby-sitter for his son.  At 1725 that same day, he telephoned the board recorder and advised that he would not attend.  At that time, he was told that he did not have the option to refuse; nevertheless, he did not attend the board proceedings.

On 16 May 1996 he received notification of a recommendation for Involuntary Separation from his AGR Tour due to inappropriate professional and personal conduct: failure to respond to a registered letter directing him to appear as a witness at an Administrative Separation Board, and failure to obey an order to appear before the board.  

After the recommendation was made to remove him from his AGR tour, it was improbable that a promotion board would select him for promotion.  Thus, he believes that he was denied the opportunity for promotion.

The involuntary separation action was eventually completed however, prior to his separation, he was advised that the TAG had directed that the remainder of his AGR tour beyond 31 August 1996 would be curtailed.  Therefore, instead of being involuntarily separated he was honorably discharged effective 31 August 1996 for “completion of required service”.  Although he believed that this was still tantamount to an involuntary separation, the honorable discharge afforded him separation pay and benefits that he would not otherwise have been entitled to.

The applicant also contends that as a reprisal by the RIARNG leadership, he was not allowed to attend his unit’s April 1996 AT in Germany.  The explanation for him to stay back, as determined by the IG, was that he had to prepare for the upcoming change of command of his company commander.  

In January 1996 he was informed that he was a nominee for recruiting school.  He subsequently received orders to attend the school.  Several days later, however, he was informed that on orders from the RIARNG, Chief of Staff, he would not be attending the course.  The rationale given for cancellation of his attendance was the need for him to prepare for the aforementioned upcoming change of command.

Following his removal from the recruiting course, he made several more protected communications to the NGB-IG and members of congress.

In May 1996 he was the only applicant for a position as a recruiter.  The RIARNG cancelled this vacancy announcement because of a lack of applicants.  The position was readvertised and as one of four applicants he was eventually considered but not selected for the position.  He believes that this too was in reprisal for his protected communications.

On 9 September 1998, the Army-IG completed its investigation into the applicant’s allegations that favorable personnel actions were withheld from him in reprisal for his protected disclosures of wrongdoing in the RIARNG.  The IG found the allegations of reprisal were not substantiated.   A heavily redacted copy of the investigation setting forth the essential findings and recommendations was provided to this Board and formed the basis for the determination in this case.

DOD Directive 7050.6, Military Whistleblower Protection, implements the provisions of Section 1034, Title 10, USC.  This directive provides, in pertinent part, that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection investigation or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation or law enforcement organization.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that satisfies this requirement.

2.  The Army-IG’s investigation established that the applicant had made a series of protected communications with various agencies concerning the RIARNG’s unfavorable personnel actions regarding him.  The investigation determined that while RIARNG officials probably knew about his protected communications each of the unfavorable actions against him would still have occurred even if the applicant had not made the protected communications.  His nonselection for promotion, the refusal to allow him to attend AT with his unit, the denial of his attendance at a previously approved school course and his relief from duty and involuntary separation from the ARNG were not substantiated as reprisal actions.

3.  After careful review of the IG’s investigation and the available records, the Board concurs with the IG’s findings that the unfavorable actions taken against the applicant by the RIARNG were not in reprisal for his protective disclosures.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sk____  ___kak __  ___clg  __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030720	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000426	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  110.03		
2.   131.00		
3.   144.03		
4.		
5.		
6.